United States v. Hill

Case: 19-20251 Document: 00516686016 Page: 1 Date Filed: 03/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 22, 2023
No. 19-20251 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Marc Anthony Hill; Bennie Charles Phillips, Jr.;
Nelson Alexander Polk; John Edward Scott,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:17-cr-00007-1
ON PETITION FOR REHEARING
Before Wiener, Dennis, and Duncan, Circuit Judges.
James L. Dennis, Circuit Judge:
The petitions for panel rehearing by Marc Hill and Bennie Charles
Phillips, Jr. are GRANTED. The unopposed motion to recall the mandate
by John Scott and Nelson Polk is GRANTED, and the mandate is
RECALLED. Our prior panel opinion issued May 24, 2022, United States
v. Hill, 35 F.4th 366 (5th Cir. 2022), is WITHDRAWN, and the following
opinion is SUBSTITUTED therefor:
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Marc Hill, Bennie Charles Phillips, Jr., Nelson Polk, and John Scott
(collectively “Defendants”), in concert with Trayvees Duncan-Bush,1
became involved in an armored car robbery at a bank automated teller
machine (ATM) scheme masterminded by Redrick Batiste.2 The scheme
involved staking out ATMs to identify when armored car drivers would
replenish the cash inside and then robbing the armored car at the time of
delivery by shooting and killing the driver. Batiste successfully executed this
murder-robbery scheme at a Wells Fargo bank ATM in Houston, Texas in
2016 with the assistance of Hill and Polk (the “Wells Fargo murder-
robbery”), resulting in the death of an armored car driver. Batiste then
planned a second murder-robbery at an Amegy Bank ATM in Houston (the
“attempted Amegy Bank ATM murder-robbery”) with the help of all four
Defendants. Acting on a tip, and after months of surveillance of Batiste,
following the Wells Fargo ATM murder-robbery, law enforcement
converged on the Amegy Bank ATM the day of the planned Amegy Bank
ATM murder-robbery to turn the plot into a takedown. Batiste opened fire
during the ambush but was shot and killed by the officers’ return fire. Law
enforcement eventually arrested Hill, Polk, Scott, and Duncan-Bush at the
scene and later arrested Phillips, who was not present for the planned Amegy
Bank ATM murder-robbery. As the result of the Wells Fargo ATM robbery
and the attempted robbery of the Amegy ATM, the surviving Defendants
were charged and prosecuted for aiding and abetting robbery, attempted
robbery, and aiding and abetting the use of a firearm during a crime of
violence causing death of a person. In one consolidated case, after a two-
week jury trial, the Defendants were each convicted on all counts. On appeal,
the Defendants each raise multiple issues challenging their convictions and
sentences. For the following reasons, we VACATE the Defendants’
1
Duncan-Bush pleaded guilty and is not a defendant in this matter.
2
Batiste was killed by police during the arrest.
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convictions as to Count Four and AFFIRM the judgment in all other
respects.
I. Jurisdiction
This is a direct appeal from a final decision of the United States
District Court for the Southern District of Texas, imposing criminal
convictions and sentences, over which this court has jurisdiction under 28
U.S.C. § 1291. Defendants timely filed their notices of appeal in compliance
with Fed. R. App. P. 4(b).
II. Background
A. Wells Fargo Murder-Robbery and Subsequent Investigation
On August 29, 2016, Batiste, assisted by Hill and Polk, shot and killed
an armored car driver as he was delivering approximately $120,000 to a Wells
Fargo ATM. The following month, the Houston Police Department (HPD)
received an anonymous tip that Batiste had been involved in the Wells Fargo
murder-robbery. HPD and the FBI’s Violent Crime Task Force (the “Task
Force”) investigated the tip. Special Agent Jeffrey Coughlin headed the
Task Force’s investigation. Batiste’s cell phone records and cell-site
locational data showed that Batiste’s phone regularly contacted the numbers
associated with Hill and Polk on the day of the incident. It also revealed that
all three phones were in the bank’s area on the day of the Wells-Fargo
murder-robbery and in the days leading up to the murder-robbery.
B. Attempted Amegy Bank Murder-Robbery
During September and October 2016, the Task Force surveilled
Batiste and observed his practice of traveling to different ATMs and banks in
Houston. In October, Duncan-Bush, a jailhouse acquaintance of Phillips,
joined the scheme when Phillips called Duncan-Bush to ask if he “want[ed]
to make some money.” By November, it became evident to the Task Force
that Batiste was targeting an Amegy Bank ATM. The Task Force had
obtained court orders for the call records and cell-tower locations of Batiste
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and Phillips’s phones and, a wiretap of Batiste’s phone. In late November,
Phillips and Duncan-Bush met with Batiste and agreed that Duncan-Bush
would “grab the black bag,” containing the cash from the armored truck, and
that Phillips and Duncan-Bush would split half of the cash, while Batiste
would take the other half.3
On November 30, 2016, Hill and Batiste observed the armored car’s
delivery to the Amegy Bank ATM. The Task Force’s recordings revealed
that Batiste called Phillips to confirm that the armored car was coming that
day. Later, Batiste told Phillips that he thought about being in “savage
mode” and “tak[ing] the whole truck down[.]” The same day, Batiste sent
news stories about other armored car robberies to Phillips and warned him,
“[n]o talking, bragging, posting, [or] flashing[.]” Scott also joined the
conspiracy that day after Batiste called and asked him if he wanted to be “in
rotation.” On December 2, Batiste called Phillips and mentioned using an
AR-15 semi-automatic rifle. He told Phillips that he had had the gun’s
ballistics modified in case law enforcement recovered ballistic evidence from
the shooting. The next day, Batiste and Hill discussed holding a
“scrimmage,” or test run, of the robbery at the Amegy Bank ATM on
December 5. Phillips brought Duncan-Bush to meet Polk for the scrimmage
and picked him up afterward. Batiste later called Phillips to ask whether
Duncan-Bush was still willing to participate, and Phillips answered that it was
“still a go.” Phone records from December 6 and 7 showed all of the
Defendants in regular communication on the days before and of the planned
Amegy Bank ATM murder-robbery.
The investigation culminated in a government takedown of the would-
be robbers on December 7, the day of the planned Amegy Bank murder-
robbery. Duncan-Bush, Polk, Hill, and Scott attempted to flee from officers
but were arrested. Batiste opened fire during the takedown, but the officers’
3
The method of compensation of the other robbers is not clear from the record.
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return fire hit and killed him. Phillips, who was not at the scene of the
attempted robbery, was arrested that afternoon.
C. Consolidated Prosecution of Both Cases
In March 2018, a grand jury returned a four-count indictment against
Hill, Polk, Scott, Phillips, and Duncan-Bush. Hill and Polk were charged
with aiding and abetting Hobbs Act robbery in violation of 18 U.S.C. §§
1951(a) and 1952 (“Count One”), and aiding and abetting the use of a firearm
during a crime of violence causing the death of a person in violation of 18
U.S.C. §§ 924(c)(1)(A)(iii), (c)(3) and (j)(1) (“Count Two”), in connection
with the Wells Fargo murder-robbery during which they successfully
murdered and robbed an armored car driver. Hill, Polk, Scott, Phillips, and
Duncan-Bush were each charged with attempted Hobbs Act robbery in
violation of 18 U.S.C. § 1951(a) (“Count Three”), and aiding and abetting
the discharge of a firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) and (c)(3) (“Count Four”), in connection with the
Amegy Bank ATM attempted murder-robbery, which was thwarted by police
and resulted in the death of coconspirator Batiste. Duncan-Bush pleaded
guilty under a plea agreement to Counts Three and Four. The first attempt
at trial ended abruptly after voir dire when Hill fired his counsel and
requested a continuance to obtain new counsel. After a one-week trial, the
jury in the second consolidated case returned guilty verdicts on all counts
against each Defendant. Hill and Polk were each sentenced to two
concurrent 240-month terms on Counts One and Three, followed by two
consecutive life terms each on Counts Two and Four. Scott and Phillips were
sentenced to 240 months on Count Three and a consecutive life term on
Count Four. Defendants now appeal their convictions and sentences to this
court.
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III. Discussion
A. Shackling
At trial, the court informed the parties that the U.S. Marshals Office
(the “Marshals”) had evaluated the trial as having the highest level of risk
and recommended that the Defendants wear leg shackles, which would be
hidden from the jury’s view by a table skirt. Alternatively, the Marshals
recommended using a banded electronic restraint device under each
Defendant’s clothing. The Marshals based their assessment on a
combination of factors, including the fact that the Defendants were charged
with “premeditated, extremely violent offenses,” that the Defendants faced
significant time in custody if convicted, the Defendants’ criminal histories,
and the joint nature of the trial.
When trial resumed after the continuance, each Defendant wore leg
shackles and an electronic restraint device. Judge Werlein, who presided
over the case before its transfer to Judge Hittner, had granted the
Defendants’ motion not to use leg restraints notwithstanding the Marshals’
report, based on the “representation of defense counsel that they believed
that the risks are not as great as the Marshal[s]” had determined. Instead,
Judge Werlein had ruled that Defendants would wear electronic restraints
under their clothing. However, after the continuance and transfer to Judge
Hittner, Judge Hittner ordered that the Defendants wear leg shackles
covered by a table skirt as the Marshals had recommended. Judge Hittner
did not explain the reason for this change on the record.
Hill objected to the shackling before the trial reconvened, but the
court overruled these objections, given the fact that that the shackles would
not be visible to the jury. However, due to disruptive behavior during the
trial, on one occasion the court ordered Hill temporarily removed from the
courtroom. Hill claims that during this removal, the jury saw the shackles.
Thus, he contends that the district court violated his constitutional rights by
shackling him in view of the jury. The Government argues that the district
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court did not abuse its discretion in determining that shackling was necessary
given the Marshals’ assessment that Hill posed a security threat and that,
even if the jury did see Hill’s shackles when he was removed from the
courtroom, Hill did not present the requisite evidence to show that he was
actually prejudiced as a result.
This court reviews a district court’s determination to physically
restrain a defendant during trial for abuse of discretion. See United States v.
Maes, 961 F.3d 366, 375 (5th Cir. 2020). “A district court abuses its
discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” United States v. Gentry, 941 F.3d 767 (5th Cir.
2019), cert. denied sub nom. Bounds v. United States, 140 S. Ct. 2731 (2020).
The Due Process Clause generally “prohibit[s] the use of physical
restraints visible to the jury[.]” Deck v. Missouri, 544 U.S. 622, 629 (2005).
Visible shackling can undermine the presumption of innocence, interfere
with a defendant’s ability to assist in his own defense, and undermine the
“dignity” of the judicial process. Id. at 630–32. But this “constitutional
requirement . . . is not absolute.” Id. at 633. A trial court may exercise its
discretion to determine that restraints “are justified by a state interest
specific to a particular trial,” considering factors such as potential security
problems and the risk of escape. Id. at 629.
The Government argues that security concerns justified the court’s
decision to shackle Hill. It argues that this circuit has long understood “the
need to give trial courts latitude in making individualized security
determinations.” United States v. Ayelotan, 917 F.3d 394, 401 (5th Cir. 2019)
(internal quotation marks omitted), cert. denied, 140 S. Ct. 123 (2019). We
have held that this latitude permits courts to “rely heavily on the U.S.
Marshals’ advice in considering restraints.” Id. (internal quotation marks
omitted). Given that the Marshals’ conclusion that the trial had the highest
level of risk, the Government argues that the district court did not abuse its
discretion in shackling Hill.
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Hill argues that “the [c]ourt did not give sufficient reasons for
restraining [him] by connecting an electronic monitor under his clothes.”
This court has held that even when a district court gives no reasons for
shackling a defendant, those reasons may be apparent on the record when
viewed in light of the specific facts of the case. See United States v. Banegas,
600 F.3d 342, 345 (5th Cir. 2010). But where the court provides no reasons
and it is not apparent on the record that shackling was justified, the burden
shifts to the Government to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict. Id. at 346 (quoting Deck, 544
U.S. at 635). Hill thus argues that because the Government has not proven
beyond a reasonable doubt that the jury did not see his restraints, he has
established that his due process rights were violated.
Although Hill acknowledges the Marshals’ report, he argues that this
report does not make apparent on the record that the shackling was justified
because the district court improperly relied on it. He asserts that “[t]he
[c]ourt[’s] ruling was predicated on the recommendations of law
enforcement and not by an independent evidentiary assessment by the
court.” But in the leading case in this area, Deck v. Missouri, 544 U.S. 622,
633 (2005), the Supreme Court held that the decision to shackle must be
made based on factors specific to the trial being considered: it did not hold
that the court could not rely on an assessment of the trial’s specific factors
made by the U.S. Marshals. Id. (stating that a judge, in the exercise of his
discretion, may shackle a defendant even in view of the jury when justified by
“particular concerns . . . related to the defendant on trial” such as “special
security needs or escape risks[.]”).
Given well-established subsequent precedents in this circuit
indicating that courts may rely heavily on the recommendation of the
Marshals, Hill’s argument is not compelling. See, e.g., United States v.
Ellender, 947 F.2d 748, 760 (5th Cir. 1991); United States v. Ayelotan, 917 F.3d
394, 401 (5th Cir.), cert. denied, 140 S. Ct. 123 (2019). Additionally, this court
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has held that “brief and inadvertent exposure to jurors of defendants in
handcuffs is not so inherently prejudicial as to require a mistrial” and that in
such cases “defendants bear the burden of affirmatively demonstrating
prejudice, which we refused to infer from isolated incidents.” United States
v. Turner, 674 F.3d 420, 435 (5th Cir. 2012) (citing United States v. Diecidue,
603 F.2d 535, 549 (5th Cir. 1979)).
Here, even taking as true Hill’s assertion that the jury saw his shackles
when he was removed from the courtroom, this was a brief and inadvertent
exposure4 and an isolated incident. Therefore, Hill bears the burden of
demonstrating prejudice. See Turner, 674 F.3d at 435. He does not present
any evidence showing that he was actually prejudiced. We thus conclude that
the district court did not abuse its discretion in shackling Hill.
B. Removal from the Courtroom
During voir dire, Hill abruptly fired his attorney and requested a
continuance of trial to obtain new counsel. The court reluctantly granted the
motion and rescheduled trial to begin two months later. Ultimately, Hill did
not retain new counsel and instead moved to proceed pro se. The court
granted Hill’s motion and appointed him standby counsel.
Subsequently, one morning during the trial, the court announced
outside of the jury’s presence that it had been informed by the Marshals that
Hill’s wife had entered the courthouse with a razor blade hidden in court
4
The contact which we held not to be so inherently prejudicial in Diecidue was
arguably much more significant than in this case. There, the defendants sought a mistrial
based on at least three instances of jurors seeing the defendants entering or exiting the
courthouse flanked by Marshals, in handcuffs, or in waist chains and handcuffs. 603 F.2d
at 549. Although Diecidue was decided before Deck, our more recent precedents still
indicate that more is required under Deck. See, e.g., United States v. Banegas, 600 F.3d 342,
347 (5th Cir. 2010) (assuming prejudice where defendant was restrained with leg irons for
the duration of a trial with no explanation from the judge); United States v. Davis, 754 F.3d
278 (5th Cir. 2014) (finding no error where defendant was handcuffed and shackled at trial
based on testimony that defendant had threatened to kill witnesses).
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clothes that she had brought for Polk.5 The court thus barred her from
entering the courthouse for the remainder of trial. This prompted an
outburst from Hill, during which he repeatedly demanded that the court
identify the Marshal who found the razor blade and complained of racism,
general constitutional violations, and shackling. The court warned Hill that
he would be removed if his behavior did not stop and allowed Hill to confer
with Scott’s counsel at Scott’s counsel’s request. However, after the jury
returned to the courtroom, Hill attempted to directly address the jury. The
court warned Hill again that it would remove him from the courtroom if
necessary, but Hill continued to protest. The court then ordered Hill
removed from the courtroom and appointed his standby counsel as his lead
counsel.
Hill contends that the district court violated his Sixth Amendment
and due process rights by temporarily removing him from the courtroom. He
argues that the court acted to remove him prematurely and failed to first
employ less drastic alternatives. The Government argues that Hill’s removal
was justified by his disruptive conduct and that the district court is not
required to use removal only as a last resort.
The parties disagree as to the standard of review under which this
court should review this issue. The Confrontation Clause of the Sixth
Amendment states that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him . . ..”).
One of the most basic of the rights guaranteed by the Confrontation Clause
is the accused’s right to be present in the courtroom at every stage of his trial.
Illinois v. Allen, 397 U.S. 337, 338 (1970). Federal Rule of Criminal Procedure
43 codifies this constitutional right, as well as its exception: a defendant
waives the right to be present “when the court warns the defendant that it
5
The Government reminded the court that this was not the first incident involving
a razor blade, as at a pretrial hearing, Phillips’s father had concealed a razor blade in court
documents.
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will remove [him] from the courtroom for disruptive behavior, but the
defendant persists in conduct that justifies removal from the courtroom.”
Fed. R. Crim. P. 43(c)(1)(C).
Based on Allen and its interpretation by other courts, the Government
asserts that the correct standard of review is abuse of discretion. See Allen,
397 U.S. at 343; see also United States v. Daniels, 803 F.3d 335, 350 (7th Cir.
2015); United States v. McGill, 815 F.3d 846, 900–01 (D.C. Cir. 2016) (per
curiam).
Hill, on the other hand, urges that the appropriate standard is “narrow
discretion” based on language from United States v. Hernandez, 842 F.2d 82,
85 (5th Cir. 1988). In Hernandez, we held that the court has only “narrow
discretion in deciding whether to proceed with a trial when a defendant is
voluntarily in absentia . . .” Id. (quoting United States v. Benavides, 596 F.2d
137, 139 (5th Cir. 1979) (internal quotation marks omitted)). However,
Hernandez articulates the standard of review for the continuing of a trial after
a defendant has voluntarily left the courtroom or failed to appear altogether,
not for removal of a defendant from the courtroom. Id.; see also Benavides,
596 F.2d at 139. On the other hand, where a defendant is ordered removed
from the courtroom, “trial judges confronted with disruptive, contumacious,
stubbornly defiant defendants must be given sufficient discretion to meet the
circumstances of each case.” Allen, 397 U.S. at 343. We therefore conclude
that the correct standard of review for the court’s removal of Hill is abuse of
discretion.
In contending that the district court removed him prematurely, thus
violating his Sixth Amendment and due process rights, Hill attempts to
distinguish this case from Allen. In Allen, the court removed a defendant who
consistently interrupted the judge and engaged in disruptive behavior during
the court proceedings. 397 U.S. 337, 339–41 (1970). After the judge had
issued several warnings, Allen was removed from the courtroom. Id. at 340.
The court determined he had lost his right to be present for the proceedings.
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Id. at 341. Hill argues that the facts which led the Supreme Court to approve
of the defendant’s removal in Allen are distinguishable from this case because
the defendant in Allen personally threatened the judge, and that the other
cases on which the Government relies also involved “more significant,
extreme, and egregious variables.” Conversely, the Government argues that
the district court correctly applied Allen.
Although Hill makes much of the fact that the defendant in Allen
personally threatened the judge, the Court’s conclusion in Allen does not
turn on that fact. Rather, the Supreme Court held that “a defendant can lose
his right to be present at trial if, after he has been warned by the judge that he
will be removed if he continues his disruptive behavior, he nevertheless
insists on conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with him in the
courtroom.” Allen, 397 U.S. at 343 (internal citations omitted). The Court
quoted Justice Cardozo, in Snyder v. Massachusetts, 2911 U.S. 97, 106 (1934):
Although mindful that courts must indulge every reasonable
presumption against the loss of constitutional rights, Johnson v.
Zerbst, 304 U.S. 458, 464 (1938), we explicitly hold today that
a defendant can lose his right to be present at trial if, after he
has been warned by the judge that he will be removed if he
continues his disruptive behavior, he nevertheless insists on
conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with
him in the courtroom. Once lost, the right to be present can,
of course, be reclaimed as soon as the defendant is willing to
conduct himself consistently with the decorum and respect
inherent in the concept of courts and judicial proceedings.
Allen, at 343 (footnotes omitted).
The events leading up to Hill’s removal meet this description.
Moreover, Hill concedes his behavior was disruptive. Following Hill’s
outburst, the court warned Hill that he would be removed if his behavior
continued and allowed him to confer with Scott’s counsel at Scott’s
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counsel’s request. When the jury returned, Hill continued to behave
disruptively and attempted to address the jury directly. At this point, the
court gave Hill yet another warning before ordering his removal from the
courtroom. As in Allen, the court repeatedly warned Hill that he would be
removed if he did not cease behaving disruptively, yet he did not heed those
warnings.
Nevertheless, Hill argues that, before ordering his removal, the court
should have first exhausted less extreme alternatives. But Allen does not
make “removal a last resort” or require a district court to “exhaust every
other possible cure” before ordering removal. United States v. Benabe, 654
F.3d 753, 770 (7th Cir. 2011); cf. Allen, 397 U.S. at 343–44 (“We think there
are at least three constitutionally permissible ways for a trial judge to handle
an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping
him present; (2) cite him for contempt; (3) take him out of the courtroom
until he promises to conduct himself properly.”).
In any case, the court here did attempt alternatives before removing
Hill. The court explicitly warned Hill more than once to cease his disruptive
conduct lest he be removed, first allowed him to confer with Scott’s counsel
instead of removing him, and then removed him only after he continued to
disrupt the trial in front of the jury. Further, the court allowed Hill to return
to the courtroom later that same day after a recess and following standby
counsel’s assertion that he would not continue his outbursts. See Allen, 397
U.S. at 343. We therefore conclude that the district court did not abuse its
discretion in temporarily removing Hill from the courtroom following his
outburst.
C. Revocation of Pro Se Status
When the district court temporarily removed Hill from the
courtroom, it revoked his pro se status and appointed the previously
designated standby counsel as lead counsel, even once Hill was permitted to
return to the courtroom. Hill contends that the district court thereby
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improperly violated his right to self–representation. The Government argues
that the district court acted within its discretion when it revoked Hill’s pro
se status.
We review claims concerning the right of self-representation de novo.
United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). An improper denial
of the right of self-representation requires reversal without harmless error
review. United States v. Majors, 328 F.3d 791, 794 (5th Cir. 2003).
The right to self-representation is necessarily implied by the Sixth
Amendment, but it is not absolute. See Faretta v. California, 422 U.S. 806,
818, 824 (1975). A district court “may terminate self-representation by a
defendant who deliberately engages in serious and obstructionist
misconduct.” Id. at 834 n.46. This court has also indicated that defendants
may waive their right to self-representation via obstructionist conduct,
especially if that behavior may be interpreted as a delay tactic. See, e.g.,
United States v. Long, 597 F.3d 720, 726–27 (5th Cir. 2010); United States v.
Weast, 811 F.3d 743, 748–49 (5th Cir. 2016).
The Government relies primarily on Allen to argue that the district
court acted within its discretion to revoke Hill’s pro se status “following his
repeated disruptive behavior and consistent refusal to comply with the
court’s warnings.” It suggests that once a pro se defendant is removed from
the courtroom for disruptive behavior, the appropriate procedure is for the
court to revoke pro se status. See Davis v. Grant, 532 F.3d 132, 142–45 (2d
Cir. 2008).
In Allen, the Supreme Court found that the district court had
permissibly removed the defendant from the courtroom, and that it had
permissibly revoked his pro se status based on multiple incidents of
disrupting the proceedings and stating that he would continue to do so, as
well as threatening the judge and tearing up his attorney’s papers. 397 U.S.
at 339–41. The Supreme Court rejected the notion that the Sixth
Amendment right to be present at one’s own trial is absolute regardless of
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the defendant’s unruly or disruptive conduct. Id. at 342. Rather, “the right
of self-representation is limited by the trial court’s responsibility to maintain
order and safety and to prevent disruption or delay.” United States v. Vernier,
381 Fed. App’x 325, 328 (5th Cir. 2010) (unpublished) (citing Faretta, 422
U.S. 806, 834 (1975)); see also Indiana v. Edwards, 554 U.S. 164 (2008)
(holding that the court did not violate the Sixth Amendment by appointing
counsel against defendant’s objection where defendant was competent to
stand trial but not competent to conduct trial proceedings by himself).
Hill makes several arguments that the district court erred in revoking
his pro se status. First, he argues that the court could have utilized standby
counsel to advise Hill that his behavior was disrespectful of the court’s
protocol, which it ultimately did, but not until after “the [c]ourt had already
acted prematurely in terminating [his] right to self[-]representation[.]” Hill
also argues that the court should have held a recess or used standby counsel
to calm him down before revoking his pro se status. However, the district
court did essentially attempt to mitigate the situation both ways: by allowing
Scott’s counsel to confer with Hill and by taking a break in proceedings while
the jury was brought back into the courtroom. Moreover, Hill’s arguments
that the district court should have taken other measures before revoking his
pro se status fail for the same reasons as do his arguments that the court
should have taken other measures before ordering him removed from the
courtroom: it tried, but Hill’s behavior did not improve. We see no abuse of
discretion.
Next, Hill argues that his conduct was not so extreme as in other cases
in which this court has found that revocation of pro se status was permissible,
citing United States v. Long, 597 F. 3d at 726–27 and Chapman v. United
States, 553 F. 2d 886, 895 (5th Cir. 1977). Further, Hill argues that his
conduct was not deliberatively obstructionist. See Faretta, 422 U.S. at 834
n.46; see also Chapman v. United States, 553 F.2d 886, 894 (5th Cir. 1997)
(holding that a defendant’s request to represent himself at trial may be
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rejected if it is intended to cause delay or gain another kind of tactical
advantage). Hill argues his behavior was not “an attempt to gain a strategic
or tactical advantage such as delay.” Rather, he argues that it was the result
of an impulsive emotional response to the removal of his wife from the
courtroom.
Based on Allen and our subsequent precedents, Hill’s conduct is not
distinguishable from cases in which the court found revocation of pro se
status permissible. See United States v. Long, 597 F.3d 720 (5th Cir. 2010);
United States v. Weast, 811 F.3d 743 (5th Cir. 2016). In Long, we found that
the defendant had waived his right to assert his right to self-representation at
sentencing by refusing to answer the court’s questions, repeatedly asserting
“Republic of Texas psychobabble” throughout the trial, and repeatedly
changing his mind about firing his appointed counsel. 597 F.3d at 727(internal quotation marks omitted). That court stated that “[g]iven Long’s
previous disruptive and uncooperative conduct, the trial court may have seen
[his demand to represent himself pro se] as another delay tactic.” Id. Here,
similarly, given Hill’s abrupt firing of his counsel which necessitated a two-
month continuance before the recommencement of trial, as well as his
continual disruption of court even in the presence of the jury, the district
court did not err in concluding that Hill was acting “to delay or disrupt the
trial.” Weast, 811 F.3d at 749. Therefore, the district court acted within its
discretion to revoke Hill’s pro se status based on his continuing disruptive
conduct.
D. Denial of a Mistrial
Following Hill’s outburst and removal from the court room, Scott and
Philips moved unsuccessfully to sever their trials from the other
Defendants’. Instead, the court instructed the jury not to consider the
outburst as evidence in the case. Scott and Hill requested that the jurors be
individually polled to determine whether this instruction would cure
potential prejudice due to the outburst. The court denied the request and
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instead questioned the jury as a group. The court asked the jury if there was
any juror who could not follow its instruction to consider only the admitted
evidence when rendering a verdict for each individual Defendant, and no
juror raised a hand. At the conclusion of the trial, the court gave additional
limiting instructions advising the jury of its duty to consider the charges and
evidence against each individual Defendant separately.
Phillips contends that the district court abused its discretion in
denying him both a mistrial and severance. We first consider the district
court’s refusal to declare a mistrial. Although Phillips did not explicitly move
for a mistrial below, the Government concedes that this error is preserved on
appeal because if the court had granted the motion to sever, it would have
had to declare the joint proceedings a mistrial. The Government argues that
the court acted within its discretion when it denied Phillips’s motion for
mistrial because it gave an appropriate limiting instruction to minimize any
prejudicial effect of Hill’s outburst.
When the issue is preserved, as here, this court reviews the denial of
a mistrial for abuse of discretion. See, e.g., United States v. Nieto, 721 F.3d
357, 369 (5th Cir. 2013). To establish an abuse of discretion, “the defendant
bears the burden of showing specific and compelling prejudice that resulted
in an unfair trial, and such prejudice must be of a type that against which the
trial court was unable to afford protection.” United States v. Thomas, 627
F.3d 146, 157 (5th Cir. 2010) (internal quotation marks omitted).
We have held that “outbursts or other disruptive actions during the
course of the trial by a defendant do not, in and of themselves, justify
severance” or a mistrial. United States v. Rocha, 916 F.2d 219, 229 (5th Cir.
1990). Nonetheless, “[a] district court must be mindful of the negative
impact such evidence may have upon the jury and carefully consider the
possible unfair prejudice against the other defendants.” Id. at 229–30. This
court has long held that an appropriate limiting instruction is sufficient to
prevent the threat of prejudice by evidence which is incriminating against one
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codefendant but not another. See, e.g., Rocha, 916 F.2d at 228–29; United
States v. DeVarona, 872 F.2d 114, 121 (5th Cir. 1989); United States v. Jones,
839 F.2d 1041, 1054 (5th Cir. 1988), cert. denied, 486 U.S. 1024 (1988); United
States v. Massey, 827 F.2d 995, 1004–05 (5th Cir. 1987); United States v.
Hughes, 817 F.2d 268, 272–73 (5th Cir. 1987), cert. denied, 484 U.S. 858(1987). Limiting instructions to the jury “will generally prevent actual harm
to a defendant” as “jurors are presumed to follow the court’s instructions.”
United States v. Richardson, 781 F.3d 237, 246 (5th Cir. 2015).
The Government argues that the district court appropriately provided
curative instructions to the jury in response to any potential prejudicial
effects of Hill’s outburst. The Government relies on cases in which this court
has held that potential prejudice resulting from one defendant’s outburst was
cured by jury instructions. United States v. Stotts, 792 F.2d 1318, 1322 (5th
Cir. 1986); see also Rocha, 916 F.2d at 231. The Government argues that, as
in those cases, the district court here acted within its discretion to deny a
mistrial because, following Hill’s outburst, it gave detailed instructions on
multiple occasions for the jury to disregard the disruption.
Phillips argues that the prejudicial effect of Hill’s outburst required a
mistrial be declared because it “created a unique and extreme circumstance”
that could not be cured by limiting instructions. Phillips relies on Braswell v.
United States, in which this court did hold that prejudice to defendants due
to codefendants’ outbursts justified a mistrial. 200 F.2d 597, 602 (5th Cir.
1952). Further, whereas this court has stated that general assertions not
pointing to “specific events that caused substantial prejudice” are
insufficient, United States v. Smith, 895 F.3d 410, 416 (5th Cir. 2018), cert.
denied sub nom. Washington v. United States, 139 S. Ct. 495 (2018), Phillips
argues that, here, he has pointed to very specific instances of prejudicial
outbursts.
Although we recognized in Braswell that a disruption by a codefendant
may result in incurable prejudice, on review of the facts, the disruption in
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Braswell was much more extreme than in this case. Braswell v. United States,
200 F.2d 597, 602 (5th Cir. 1952). In Braswell, two codefendants had
assaulted a U.S. Marshal during the trial and another defendant had to be
forcibly restrained to prevent her from taking pills, during which she bit a
police officer. Id. In comparison, we have held under similar and more
extreme circumstances than those presented here that jury instructions to
disregard the incident cured any possible prejudice from the codefendant’s
outburst. See United States v. Stotts, 792 F.2d 1318, 1322 (5th Cir. 1986)
(finding prejudice to be effectively cured by jury instructions to disregard a
codefendant’s outburst during which he was removed from the courtroom
after an “altercation” with a Marshal); Rocha, 916 F.2d at 231 (finding
prejudice to be effectively cured by jury instructions to disregard a
codefendant’s outburst during which he made a death threat to a witness
during that witness’s testimony). We therefore hold that Hill’s outburst falls
short of the rare circumstances in which a codefendant’s disruption results
in incurable prejudice such that a mistrial is required.
E. Denial of Motions to Sever
Next, we consider Phillips’s severance motion. Phillips contends that
the district court abused its discretion in denying his motion for severance,
which he filed after Hill’s outburst and removal from the courtroom. The
Government argues that the district court acted within its discretion when it
denied Phillips’s request to sever.
This court reviews a district court’s “decision not to sever under the
exceedingly deferential abuse of discretion standard.” United States v.
Daniel, 933 F.3d 370, 380 (5th Cir. 2019) (internal quotation marks omitted).
Moreover, we will not reverse a district court’s decision not to sever unless
the defendant establishes “clear, specific and compelling prejudice that
resulted in an unfair trial.” United States v. Huntsberry, 956 F.3d 270, 287
(5th Cir. 2020) (internal quotation marks omitted).
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On top of the abuse of discretion standard, a defendant challenging
the court’s denial of his request to sever also faces a second burden of
precedent, which “does not reflect a liberal attitude toward severance.”
Daniel, 933 F.3d at 380. Rather, “[t]o promote judicial economy and the
interests of justice,” there is a strong preference in the federal system for
joint trials of defendants indicted together. Id.; see also Zafiro v. United States,
506 U.S. 534, 540 (1993). To overcome this high burden, the defendant must
show a “specific and compelling prejudice” resulting from the joint trial.
United States v. Owens, 683 F.3d 93, 98 (5th Cir. 2012). The defendant must
also show that he was not adequately protected from this prejudice by
limiting instructions to the jury, id., and that this prejudice “outweighed the
government’s interest in economy of judicial administration[.]” Daniel, 933
F.3d at 380.
Additionally, it is not enough for a defendant to “alleg[e] a spillover
effect[,] whereby the jury imputes the defendant’s guilt based on evidence
presented against his codefendants[.]” United States v. Reed, 908 F.3d 102,
114 (5th Cir. 2018) (internal quotation marks omitted), cert. denied, 139 S. Ct.
2655 (2019). Rather, “severance is required on the basis of a disparity in the
evidence only in the most extreme cases.” Owens, 683 F.3d at 100 (emphasis
in original) (internal quotation marks omitted).
Even in cases involving a high risk of prejudice, limiting instructions
will often suffice to cure this risk. Id. at 381. The Federal Rules of Criminal
Procedure do not require severance based on prejudice, but provide that the
court may sever or “provide any other relief that justice requires.” Fed. R.
Crim. P. 14(a); see also Zafiro, 506 U.S. at 539 (explaining that Rule 14
“leaves the tailoring of the relief to be granted, if any, to the district court’s
sound judgment.”). To overcome the presumption that juries “follow the
instructions given to them by the district court,” a defendant “must identify
specific instances of prejudice unremedied by limiting instructions.” Daniel,
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933 F.3d at 381. Further, a “conclusory assertion” that the jury was unable
to follow limiting instructions is insufficient. Reed, 908 F.3d at 114.
Phillips argues that the prejudice against him was specific and
compelling enough that severance was required. He contends that while he
was charged under the same superseding indictments as his codefendants, he
was not involved in or charged with the death of the armored car driver
during the Wells Fargo murder-robbery, and thus that the evidence
presented to support that count was severely prejudicial to him. The
Government argues that the district court acted within its discretion in
declining to order severance because, first, the Wells Fargo murder-robbery
and the Amegy Bank attempted murder-robbery were “so completely
intertwined,” and, second, the district court gave strong limiting instructions
throughout the trial to minimize the risk of prejudice.
Phillips urges that the facts here resemble cases in which we have held
that the district court abused its discretion in denying appellant’s request for
severance. See, e.g., United States v. McRae, 702 F.3d 806, 828 (5th Cir. 2012).
However, these cases are distinguishable. In McRae, this court held that the
district court abused its discretion in declining to sever the case of one
defendant, Warren, from those of his codefendants. 702 F.3d 806 (5th Cir.
2012). There, Warren was charged only with depriving a victim, Glover, of
his right to be free from the use of unreasonable force by a law enforcement
officer, and carrying, using, and discharging a firearm in furtherance of a
felony crime of violence resulting in death. His codefendants, on the other
hand, were charged additionally under civil rights statutes for beating two
men, burning one of their cars, and burning Glover’s body. Id. at 824.
Warren’s codefendants were also charged with obstruction of justice for
interference with the investigation into these crimes, and with the use of fire
to commit civil rights deprivations and obstructions, with preparing and
submitting a false narrative with intent to obstruct the investigation of the
Glover shooting, and with making false statements to a federal grand jury. Id.21
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This court found there that the district court had erred by refusing to
sever Warren’s trial. Id. at 842. In making this determination, we
emphasized that if Warren had been tried alone the trial would have lasted
approximately three days, whereas there he endured a month-long trial
saddled by prejudicial evidence and testimony unrelated to his charges. Id. at
825–26.
We have indicated that the McRae decision was narrow and based on
the facts presented in that case. For example, in United States v. Reed, we
stated,
Steven Reed points to our decision in [McRae] where we
reversed a district court’s refusal to sever one police officer’s
officer-involved shooting trial from the trial of a set of other
police officers who separately attempted to cover up the
shooting. Unlike in McRae, the evidence presented against
Walter Reed on the counts only pertaining to him (the tax
return, mail fraud, and certain wire fraud counts) was not so
inflammatory that the jury would find it highly difficult to
dissociate it from Steven Reed’s conduct. Further, the charge
and evidence against Steven Reed was significantly related to
the charge and evidence against Walter Reed on the campaign
funds counts, whereas in McRae, two sets of defendants were
effectively being tried for two completely different offenses and
the only link was that one offense was the “catalyst” for the
other.
903 F.3d 102, 114 n.40 (5th Cir. 2018); see also United States v. Ledezma-
Cepeda, 894 F.3d 686 (5th Cir. 2018) (distinguishing McRae on the grounds
that, in McRae, Warren was not a member of the conspiracy and had
committed crimes qualitatively less severe than those of his codefendants).
In comparison, here, the evidence presented against Phillips’s
codefendants alone “was not so inflammatory that the jury would find it
highly difficult to dissociate it from” Phillips’s conduct. Reed, 903 F.3d at
114 n.40. As in Reed, “the charge and evidence against [Phillips] was
significantly related to the charge and evidence” against his codefendants
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“whereas in McRae, two sets of defendants were effectively being tried for
two completely different offenses and the only link was that one offense was
the “catalyst” for the other.” Id. Although Phillips was not charged with
Counts 1 and 2 regarding the Wells Fargo robbery, and makes much of the
fact that that robbery resulted in the death of an armored truck driver, Phillips
was charged for the Amegy Bank robbery, during which Batiste’s death
occurred and which involved the planned murder of another armored truck
driver. Under those circumstances, the evidence presented against the other
Defendants on Counts 1 and 2 was not so much more inflammatory than the
conduct for which Phillips was charged that “jury would find it highly
difficult to dissociate it from” Phillips’s own conduct. Reed, 903 F.3d at 114
n.40. The charges against Phillips do not differ dramatically from those
against his codefendants. See id.; see also United States v. Erwin, 793 F.2d 656,
666 (5th Cir. 1986) (finding error in refusing to sever as to one defendant
against whom the charges were “only peripherally” related to those against
the other defendants). Therefore, we hold that the district court did not
abuse its discretion in denying Phillips’s motion for severance.
F. Agent Coughlin’s Testimony Regarding Coded Language
At trial, the Government’s case-in-chief began with Agent Coughlin,
whose testimony focused in part on cell phone evidence from the wiretapping
of Batiste’s phone. Agent Coughlin testified that the investigation had
occupied “75 to 80 percent of [his] time[,]” and that he had spent “a massive
amount of time” reviewing all the evidence. When the Government played
Batiste’s wiretapped calls, Agent Coughlin frequently provided
interpretations of any coded language. For example, he explained that
Batiste’s reference to “savage mode” meant executing the robbery while
armored car guards moved the money from a broken armored truck to a
second truck.
Phillips argues that the district court erred by allowing Agent
Coughlin to provide lay-opinion testimony regarding his interpretation of
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coded language in the wiretapped phone calls. The Government argues that
the district court did not err, much less commit reversible plain error, by
allowing Agent Coughlin’s lay testimony about the wiretapped phone calls.
The parties debate the applicable standard of review. Phillips argues
that the issue should be reviewed for abuse of discretion. The Government
contends that the issue should be reviewed for plain error. This court reviews
“preserved objections regarding the admission of expert or lay testimony for
abuse of discretion, subject to harmless error analysis.” United States v.
Haines, 803 F.3d 713, 726 (5th Cir. 2015). “Unpreserved errors of the same
variety are reviewed for plain error.” Maes, 961 F.3d at 372. “To be
considered preserved for appeal, a defendant’s objection to a district court’s
ruling must be on the specific grounds raised below.” Id.
Phillips argues that the standard of review for the admissibility of the
lay-opinion testimony is abuse of discretion because that is the applicable
standard of review on appeal for the admissibility of evidence. United States
v. Westmoreland, 841 F.2d 572, 578 (5th Cir. 1988), cert. denied, 488 U.S. 820(1988); United States v. Stephenson, 887 F.2d 57, 59 (5th Cir. 1989), cert.
denied, 493 U.S. 1086 (1990). However, as the Government points out, this
case presents two wrinkles. First, Phillips did not object to Coughlin’s
testimony: his codefendant Scott did. A defendant typically “must bring his
own objections to preserve them.” United States v. Evans, 892 F.3d 692, 711
n.1 (5th Cir. 2018). However, we have sometimes considered an evidentiary
objection by a codefendant “sufficient to invoke the abuse of discretion
standard[.]” United States v. Sanchez-Sotelo, 8 F.3d 202, 210 (5th Cir. 1993);
see also United States v. Westbrook, 119 F.3d 1176, 1185 (5th Cir. 1997); but see
United States v. Belanger, 890 F.3d 13, 27 (1st Cir. 2018) (reviewing argument
concerning wiretap evidence for plain error when only a codefendant
objected).
Second, even assuming Scott’s objection was adequate to preserve the
issue for abuse of discretion review, the Government argues that it should
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only extend to the “specific grounds raised below” by Scott. Maes, 961 F.3d
at 372 (internal quotation marks omitted). The Government contends that
Scott’s objections were not that Agent Coughlin was unqualified to provide
lay testimony on the meaning of the coded language in the wiretapped calls,
but instead that he challenged only Coughlin’s testimony regarding two
specific calls. Thus, the Government contends, only a challenge to
Coughlin’s testimony regarding those two calls would be preserved for abuse
of discretion review, and the rest would be reviewed for plain error. Because
we find that Phillips’s claim fails under either abuse of discretion or plain
error review, we go forward applying the less stringent abuse of discretion
review.
Federal Rule of Evidence 701 provides that a witness may offer lay
opinion testimony when “it has the effect of describing something that the
jurors could not otherwise experience for themselves by drawing upon the
witness’s sensory and experiential observations that were made as a first-
hand witness to a particular event.” United States v. Haines, 803 F.3d 713,
733 (5th Cir. 2015) (cleaned up). By contrast, a witness’s “[t]estimony on
topics that the jury is fully capable of determining for itself is not ‘helpful to
clearly understanding the witness’s testimony,’ and therefore is inadmissible
under Rule 701.” Id. (citing, quoting Fed. R. Evid. 701).
As the Government points out, this court has consistently held that
law enforcement agents may “draw upon their familiarity with a particular
case . . . to provide lay opinion testimony regarding the meaning of specific
words and terms used by the particular defendants in the case.” United States
v. Staggers, 961 F.3d 745, 761 (5th Cir. 2020) (internal quotation marks
omitted), cert. denied, 141 S. Ct. 388; accord, e.g., Haines, 803 F.3d at 729;
United States v. Akins, 746 F.3d 590, 599–600 (5th Cir. 2014); United States
v. El-Mezain, 664 F.3d 467, 514 (5th Cir. 2011). “[E]xplaining the meanings
of terms as used in the conversations and documents, as well as the
relationships between the people the agent is investigating, provides the jury
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with relevant factual information about the investigation.” Haines, 803 F.3d
at 729 (cleaned up).
The Government argues that, as in those cases, the district court here
properly allowed Agent Coughlin’s lay testimony of his interpretation of the
calls because his participation in the case was extensive. See, e.g., Staggers,
961 F.3d at 761 (summarizing a case agent’s extensive involvement in the
investigation); Akins, 746 F.3d at 599–600 (same). Coughlin not only led the
investigation from the start, but he also spent “75 to 80 percent of [his] time”
at work on the case. Coughlin “had much more insight into the meaning of
the code words than did the jury.” United States v. Macedo-Flores, 788 F.3d
181, 192 (5th Cir. 2015) (approving coded language testimony). Coughlin was
therefore qualified to provide his opinion “regarding the meaning of specific
words and terms used by the particular defendants in the case.” Staggers, 961
F.3d at 761 (internal quotation marks omitted).
Phillips argues that Agent Coughlin’s testimony usurped the function
of the jury to draw inferences on its own from the evidence presented. He
cites only one precedential case6 to support the argument that the admission
of Coughlin’s testimony was improper: United States v. Haines, 803 F.3d 713(5th Cir 2015). Haines fails to help Phillips. There, a DEA agent testified to
his interpretations of jargon in intercepted calls to prove a drug conspiracy.
Id. at 713. We concluded that the agent’s testimony was admitted in error
because “it went beyond [the agent]’s expertise and personal knowledge of
6
Phillips’s citations to other circuits’ precedents are unhelpful to him as they
involve cases where the court found that the agent lacked sufficient knowledge to lay a
proper foundation for lay witness testimony, United States v. Freeman, 730 F.3d 590, 593
(6th Cir. 2013), or where the court found that the agent’s testimony usurped the function
of the jury because it effectively explained to the jury how it should interpret the phone
calls in question rather than providing definitional information for opaque coded language,
United States v. Grinage, 390 F.3d 746, 748–49 (2d Cir. 2004), or where the agent provided
definitional information for not only coded language, but also “plain English words and
phrases.” United States v. Peoples, 250 F.3d 630, 639–40 (8th Cir. 2001). In contrast, here,
Coughlin provided only definitional information about coded language used by Defendants
based on his expertise and personal knowledge of the investigation.
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the investigation and instead ventured into speculation, usurping the jury’s
function, which is to draw its own inferences from the evidence presented.”
Id. at 734. But in Haines we made a distinction between the kind of lay
testimony as to the meaning of coded words based on an agent’s
“experiential observations[,]” see Haines, 803 F.3d at 733, which we found
permissible, and testifying as to the meaning of common words such as, in
that case, “what,” “she,” “that,” and “stuff,” which we found
impermissible. See also United States v. Peoples, 250 F.3d 630, 639–40 (8th
Cir. 2001) (making the same distinction). As the Government points out,
Phillips’s argument does not account for the different holdings for these two
categories. Here, Coughlin’s testimony falls into the first, permissible
category. The coded meanings about which Coughlin testified were not as to
common words, but rather to opaque terms and phrases such as “the
commissary is coming,” “savage mode,” “hellos,” and “African devil.”
This court has approved coded-language testimony under similar
circumstances. See Haines, 803 F.3d at 729 (proper for agent to opine that
“the phrase ‘I’ll be up there’ is a reference to Houston, Texas”); Staggers,
961 F.3d at 761 (proper for agent to opine “that the terms ‘gator meat’ and
‘alligator’” referred to heroin). Coughlin’s testimony therefore did not, as
Phillips argues, impermissibly usurp the function of the jury.
G. Confrontation Clause
Agent Coughlin’s testimony also concerned reports of information
extracted from Defendants’ cellphones. However, rather than the full,
mechanically extracted reports, Coughlin testified to versions of the
extraction reports that he had himself edited down to those portions he
deemed relevant. Polk, Scott, and Hill raised Sixth Amendment objections
to this, asserting that, because Coughlin did not personally extract the reports
from their cell phones or observe the extraction, his testimony violated the
Sixth Amendment’s Confrontation Clause. The court overruled the
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objections, accepting the Government’s argument that the reports were not
“opinion piece[s]” in which someone was “evaluating the evidence[.]”
Polk and Scott argue on appeal that the district court violated their
Sixth Amendment rights under the Confrontation Clause by allowing Agent
Coughlin to testify concerning data reports which were extracted from
Defendants’ cell phones. The Government argues that the cell-phone
extraction reports were not testimonial statements triggering the
Confrontation Clause because the reports are raw, machine produced data
that contained no independent analysis or opinion.
“This court reviews de novo a timely Confrontation Clause objection,
subject to harmless error analysis.” United States v. Morgan, 505 F.3d 332,
338 (5th Cir. 2007) (per curiam). But when the defendant’s objection is
untimely, this court’s review is for plain error. United States v. Martinez-Rios,
595 F.3d 581, 584 (5th Cir. 2010) (per curiam). The parties disagree about
whether the Defendants’ objections were timely. The Government argues,
based on the Southern District of Texas Criminal Local Rules, that
Defendants were required to make any objection to exhibits at least seven
days before trial, and that failure to object in writing pretrial “concedes
authenticity.” S.D. Tex. Crim. L.R. 55.2. Thus, it argues that the
Defendants’ objections made during Coughlin’s testimony were untimely.
However, as Scott points out, Judge Werlein had specifically stated
that he would rule on any objections to exhibits at the time they were offered.
And Judge Hittner, once the case was transferred to him, stated that all of
Judge Werlein’s former rulings remained in effect. Arguably, then, this
relieved Defendants of the requirement to bring objections to exhibits in
writing at least seven days before trial. We thus proceed on the assumption
that Judge Werline’s rulings remained in effect and that de novo review is the
correct standard of review.
The Confrontation Clause of the Sixth Amendment, in pertinent part,
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right
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. . . to be confronted with the witnesses against him.” U.S. CONST.
amend. VI. In Crawford v. Washington, 541 U.S. 36, 68 (2004), the
Supreme Court held that fidelity to the Confrontation Clause permitted
admission of “[t]estimonial statements of witnesses absent from trial . . . only
where the declarant is unavailable, and only where the defendant has had a
prior opportunity to cross-examine.” Id. at 59; see also Michigan v. Bryant,
562 U.S. 344, 354 (2011) (“[F]or testimonial evidence to be admissible, the
Sixth Amendment ‘demands what the common law required: unavailability
[of the witness] and a prior opportunity for cross-examination.’” (quoting
Crawford, 541 U.S. at 68)). In Melendez–Diaz, relying on Crawford’s
rationale, the Court refused to create a “forensic evidence” exception to this
rule. 557 U.S. 305, 317–21. There, the Court held that an analyst’s
certification prepared in connection with a criminal investigation or
prosecution was “testimonial,” and therefore within the compass of the
Confrontation Clause. Id. at 321–324.
Applying Melendez-Diaz, the Supreme Court held that a forensic
analyst who had not performed or observed a blood-alcohol test could not
testify to the forensic report certifying the test’s result under the
Confrontation Clause. Bullcoming v. New Mexico, 564 U.S. 652, 662 (2011).
But on the other hand, on plain error review, this court has found no error in
district courts admitting reports containing only “raw, machine-produced
data[;]” in those cases, GPS cellphone tracking reports. See United States v.
Waguespack, 935 F.3d 322, 333–34 (5th Cir. 2019), cert. denied, 140 S. Ct. 827
(2020); United States v. Ballestros, 751 F.App’x 579, 579–80 (5th Cir. 2019)
(unpublished), cert. denied, 139 S. Ct. 2706 (2019). In so doing, we have
explained that multiple other circuits have also held that “machine
statements aren’t hearsay.” United States v. Lizarraga-Tirado, 789 F.3d
1107, 1110 (9th Cir. 2015) (satellite images with machine generated location
markers); United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir.2008) (cell
phone call and billing records); United States v. Moon, 512 F.3d 359, 362 (7th
Cir. 2008) (raw drug test data; “The report has two kinds of information: the
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readings taken from the instruments, and [the witness’s] conclusion that
these readings mean that the tested substance was cocaine.”); United States
v. Washington, 498 F.3d 225, 230 (4th Cir. 2007) (raw drug test data); United
States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005) (computer generated
‘header’ information); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir.
2003) (same).
The Government argues that, applying those principles here, the cell-
phone extraction reports that Agent Coughlin testified about were not
testimonial statements triggering the Confrontation Clause. Rather, the
Government asserts that, unlike the forensic reports at issue in Bullcoming
and Melendez-Diaz, these reports are raw, machine produced data that
contained no independent analysis or opinion. In the alternative, if the
reports are testimonial, the Government argues that Coughlin was in fact the
correct witness to testify to them as he was the one who curated the tens of
thousands of pages of data extracted from the cellphones into the excerpted
versions containing only the information which Coughlin deemed relevant
from which he testified.
Polk and Scott aver that the cellphone extraction reports are
testimonial; thus, that Coughlin’s testimony about the extraction reports
violated their Confrontation Clause rights. They point out that, as in
Bullcoming, Coughlin did not participate in or observe the creation of the
extraction reports. Further, the Defendants argue that the extraction reports
were similar to the forensic laboratory report in Bullcoming and were thus
testimonial evidence subject to the Confrontation Clause.
We agree with the Government that the extraction reports at issue
here were non-testimonial, raw machine created data. Key differences exist
between test reports generated by a person’s analysis and test reports which
are the result of machine analysis. This distinction has been illustrated by
Bullcoming and its impact on the progeny of the Seventh Circuits’ Moon, 512
F.3d at 362, and the Fourth Circuits’ Washington. 498 F.3d at 230. As the
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Fourth Circuit pointed out in United States v. Summers, the Supreme Court
in Bullcoming emphasized that the report in question there “contained not
only raw, machine-produced data, but also representations relating to past
events and human actions[,]” e.g., the validity of the analysis or the integrity
of the sample. 666 F.3d 192, 199 (4th Cir. 2011) (emphasis original) (cleaned
up) (citing Bullcoming, 564 U.S. at 660). Albeit on plain error review, this
court has made similar holdings, see Waguespack, 935 F.3d 322 (5th Cir.
2019), following the logic of Supreme Court precedent in Melendez-Diaz, 557
U.S. at 311, and Bullcoming, 564 U.S. at 662, in which the Court emphasized
that the reports in question were analyzed by a person and were not “only
machine-generated results, such as a printout from a gas chromatograph.”
Bullcoming, 564 U.S. at 673 (Sotomayor, concurring in part). Here, the raw
cellphone extraction reports contained “only machine-generated results,”
and were thus non-testimonial.
Even if we were to construe the curated extraction reports which were
actually admitted into evidence and testified about by Coughlin as
testimonial, Coughlin would be the correct person to testify about those
reports because he created them from the raw data. Scott argues that this
holding is akin to allowing the Government to introduce an “excerpt of an
autopsy report through a witness, claiming that the witness is the declarant
of those excerpts from the autopsy report since he created the excerpt[.]” But
this argument assumes that the underlying report being excerpted is itself
testimonial. We therefore hold that the district court did not err in allowing
Coughlin to testify to the extraction reports he had excerpted from the full,
raw machine-generated reports of Defendants’ cellphone data.
H. Ex Parte Contact with a Juror
At one point during the trial, the Government notified the court that
it had learned of an incident in which someone from the courtroom gallery
followed a juror out of the courthouse and called that juror by name. The
court confirmed with the Marshals that the unidentified person was not
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someone on the witness list. 7 Polk asked the court to identify the juror and
the court refused, but the court did agree to conduct a general inquiry and
requested that defense counsel collaborate on a limiting instruction to the
jury.
After discussion, Polk stated that the Defendants were “concerned
about questioning the jury and poisoning the jurors with information that
they don’t already have, or they may not even be aware of.” However, the
court again declined to identify the juror, and after further discussion, Scott
told the court that the Defendants wanted to give a jury instruction before
excusing the jury at the end of the day. Hill provided the proposed jury
instruction,8 to which each Defendant and the Government agreed. At the
end of the day, the court gave the instruction, and, after giving the jurors the
opportunity to ask questions or express any problems with the instruction,
the case manager stated that no juror had expressed concern about the
instruction. The court stated that, in that case, it did not need to call any
jurors back to discuss it, and none of the parties objected.
Hill, Polk, and Scott claim that the district court abused its discretion
by failing to adequately respond to this incident of alleged ex parte contact
with a juror. The Government responds that the Defendants waived this
argument via their conduct at trial. While we disagree that the argument has
been waived, we hold that the Defendants’ argument fails on its merits.
This court reviews a district court’s decision “in handling complaints
of outside influence on the jury” for abuse of discretion. United States v.
Sotelo, 97 F.3d 782, 794 (5th Cir. 1996). “The district court must balance the
probable harm resulting from the emphasis that a particular mode of inquiry
would place upon the misconduct and the disruption occasioned by such an
7
It is unclear from the record whether this person was ever definitively identified.
8
It read: “No events outside the courtroom should affect your ability to be a fair
and impartial juror. Your verdict must be based upon the testimony of the witnesses and
the evidence presented to you during trial.”
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inquiry against the likely extent and gravity of the prejudice generated by the
misconduct.” Id. We “accord broad discretion to the trial court in these
matters[,]” recognizing the district court’s unique ability to evaluate the
“mood and predilections of the jury[.]” Id.The Government argues that the Defendants waived this argument by
formulating and agreeing to the jury instruction given in response to the ex
parte contact. “A waiver occurs by an affirmative choice by the defendant to
forego any remedy available to him, presumably for real or perceived benefits
resulting from the waiver.” United States v. Richard, 901 F.3d 514, 517 (5th
Cir. 2018) (internal quotation marks omitted). However, the cases the
Government cites to support this argument found waiver where a defendant
affirmatively agreed to a jury instruction and then sought to claim error based
on the instruction itself. See United States v. LeBeau, 949 F.3d 334, 342 (7th
Cir. 2020); cert. denied, 141 S. Ct. 261; United States v. Feldman, 931 F.3d
1245, 1260 (11th Cir. 2019), cert. denied, 140 S. Ct. 2658 (2020). The
Government also relies on an unpublished case from this circuit which found
waiver where a defendant sought to challenge the court’s resolution of an
issue when he had explicitly agreed to the decided course of action in a prior
proceeding. United States v. Hoover, 664 F. App’x 363, 366 (5th Cir. 2016)
(unpublished).
We disagree that the Defendants have waived this issue. Unlike in the
cases on which the Government relies, the Defendants here did not
affirmatively agree with the district court’s course of action in attempting to
rectify the ex parte contact with a jury instruction; instead, once the court
determined that a jury instruction would suffice to rectify the alleged ex parte
contact, the Defendants agreed to the wording of the instruction itself, which
they do not challenge here. The argument that the Defendants seek to
raise—that the district court did not sufficiently inquire into the alleged ex
parte contact before determining that a jury instruction would be sufficient
to cure any resultant prejudice—was therefore not waived.
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Nonetheless, we agree with the Government that the Defendants’
argument fails on the merits. We afford broad discretion to district courts to
tailor the appropriate response to incidents like this, trusting them, as the
courts of first impression, to “balance the probable harm resulting from the
emphasis that a particular mode of inquiry would place upon the misconduct
and the disruption occasioned by such an inquiry against the likely extent and
gravity of the prejudice generated by the misconduct.” Sotelo, 97 F.3d at 794.
The Government contends that the district court’s response to the
alleged ex parte contact was wholly within its discretion. By adopting a
neutral cautionary instruction, the Government urges that the district court
acted well within the court’s “broad discretion to fashion an investigation.”
Sotelo, 97 F.3d at 797. Moreover, as the Government points out, the
Defendants themselves recognized the risk that a formal investigation of this
incident might itself cause prejudice by providing the jurors with information
they did not already have.
Defendants argue that the district court abused its discretion in failing
to conduct a sufficient inquiry into the ex parte contact. Polk contends that
“the nature, circumstances, prejudicial impact on the case, and how it
affected the jury was not investigated much less determined.” Hill argues
that the court should have called potential witnesses to determine the
prejudicial impact of the contact. However, the Defendants’ arguments
ultimately amount to a disagreement with the mode of inquiry chosen by the
court to investigate and address the ex parte contact. A requirement like the
one Defendants propose, that a district court inquire in a specific way into an
allegation of ex parte contact, does not comport with the broad discretion
afforded to district courts to individually tailor effective mitigation of such
incidents. We therefore hold that the district court did not abuse its
discretion by insufficiently inquiring into the allegation of ex parte contact.
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I. Sufficiency of the Evidence
Phillips next contends that the evidence was insufficient to support his
conviction on Count Three, attempted Hobbs Act Robbery, 18 U.S.C. §
1951(a). The Government argues that, viewing the evidence in the light most
favorable to the verdict, there was sufficient evidence to support Phillips’s
convictions.
When a defendant preserves a challenge to the sufficiency of the
evidence, this court’s review is de novo. See, e.g., United States v. Dailey, 868
F.3d 322, 327 (5th Cir. 2017). Sufficient evidence supports a jury’s verdict
so long as “a rational trier of fact could have found the elements of the crime
beyond a reasonable doubt.” Dailey, 868 F.3d at 327. Sufficiency review is
“highly deferential” to the jury’s determination of guilt. United States v.
Zamora-Salazar, 860 F.3d 826, 831 (5th Cir. 2017). This court may not
reweigh the evidence, nor second-guess “[c]redibility choices that support
the jury’s verdict[,]” id. at 832; rather, it must view all evidence, reasonable
inferences, and credibility choices in the light most favorable to that verdict.
See, e.g., Dailey, 868 F.3d at 327.
There are two elements of a Hobbs Act violation: “(1) robbery,
extortion, or an attempt or conspiracy to rob or extort (2) that affects
commerce.” United States v. Avalos-Sanchez, 975 F.3d 436, 440 (5th Cir.
2020) (footnotes omitted). To be convicted of attempt, “the evidence must
show the defendant (1) acted with the culpability required to commit the
underlying substantive offense, and (2) took a substantial step toward its
commission.” United States v. McGee, 821 F.3d 644, 647 (5th Cir. 2016)
(internal quotation marks omitted). A defendant’s “mere preparation” does
not meet the substantial-step requirement. See, e.g., United States v. Howard,
766 F.3d 414, 419 (5th Cir. 2014). But a substantial step “is less than the last
act necessary before the crime is in fact committed[;]” it simply requires
“conduct that strongly corroborates the firmness of the defendant’s criminal
intent.” Id. (internal quotation marks omitted). This requirement “prevents
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the conviction of persons engaged in innocent acts on the basis of a mens rea
proved through speculative inferences, unreliable forms of testimony, and
past criminal conduct.” United States v. Oviedo, 525 F.2d 881, 884–85 (5th
Cir. 1976).
Phillips challenges only the sufficiency of the evidence supporting the
determination that he took a substantial step toward commission of
attempted Hobbs Act robbery. He points to his lack of participation and
communication on the day of the attempted murder-robbery to support his
argument. On the other hand, the Government argues that there was
abundant evidence that Phillips took substantial steps toward committing the
offense. The Government argues that, taken together, the evidence it
presented about Phillips’s participation in the conspiracy to commit the
attempted murder-robbery conclusively corroborates the firmness of
Phillips’s criminal intent. Howard, 766 F.3d at 419.
We agree that sufficient evidence supports the jury’s determination
that Phillips took the substantial step necessary to convict him of Count
Three. Phillips’s lack of participation on the day of the attempted murder-
robbery does not negate the substantial evidence presented that Phillips
intended and took substantial steps toward committing the offense, including
Phillips’s recruitment of Duncan-Bush to the scheme, his delivery of
Duncan-Bush’s burner phone, and his compliance with Batiste’s orders to
drive Duncan-Bush to a nearby hotel to review plans ahead of the bank
robbery. Further, Phillips was not required to participate in the attempted
murder-robbery’s final acts in order to take a “substantial step.” Howard,
766 F.3d at 419. Taking the evidence in the light most favorable to the
verdict, Phillips at the very least was integral in recruiting Duncan-Bush and
facilitating and directing his participation in the attempted Amegy Bank
robbery. On this record, “a rational trier of fact could have found the
elements of the crime beyond a reasonable doubt.” Dailey, 868 F.3d at 327.
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J. Are Aiding and Abetting Hobbs Act Robbery and Attempted Hobbs
Act Robbery Crimes of Violence?
Hill argues that aiding and abetting Hobbs Act robbery is not a crime
of violence under 18 U.S.C. § 924(c)’s elements clause and thus cannot
support his conviction under Count Two. Similarly, all four Defendants
argue that attempted Hobbs Act robbery is not a crime of violence under 18
U.S.C. § 924(c)’s elements clause and thus cannot support their convictions
under Count Four.
This court reviews the legal question of whether a predicate offense
qualifies as a crime of violence de novo. See, e.g., United States v. Smith, 957
F.3d 590, 592 (5th Cir. 2020), cert. denied, 141 S. Ct. 828 (2020). In United
States v. Davis, the Supreme Court held that the residual clause of
§ 924(c)(3)(B) was unconstitutionally vague. 139 S. Ct. 2319, 2366 (2019).
But a defendant’s § 924(c) “convictions can still be sustained if the predicate
offenses. . . can be defined as a [crime of violence] under the elements clause
contained in § 924(c)(3)(A).” Smith, 957 F.3d at 592–93.
Our precedents establish that Hobbs Act robbery is a crime of violence
under the elements clause. See United States v. Bowens, 907 F.3d 347, 353-54
(5th Cir. 2018) (“As the government correctly notes, binding circuit
precedent forecloses Bowens’s claim that Hobbs Act robbery is not a [crime
of violence] predicate . . . .”). While we have not addressed whether aiding
and abetting Hobbs Act robbery is a crime of violence, our sister circuits have
uniformly held that, because there is no distinction between those convicted
of aiding and abetting and those convicted as a principal under federal law,
aiding and abetting a crime of violence qualifies as a crime of violence as well.
United States v. García, 904 F.3d 102, 109 (1st Cir. 2018); United States v.
Waite, 12 F.4th 204, 212, 219 (2d Cir. 2021), vacated on other grounds, 142 S.
Ct. 2864; United States v. McKelvey, 773 F. App’x 74, 75 (3d Cir. 2019);
United States v. Caldwell, 7 F.4th 191, 212–13 (4th Cir. 2021); United States v.
Richardson, 948 F.3d 733, 742 (6th Cir. 2020); United States v. Brown, 973
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F.3d 667, 697 (7th Cir. 2020); Young v. United States, 22 F.4th 1115, 1122–23
(9th Cir. 2022); United States v. Deiter, 890 F.3d 1203, 1214–16 (10th Cir.
2018); In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016).
Our precedent is consistent with this understanding of aiding and
abetting law, and, like our sister circuits, we conclude that the substantive
equivalence of aiding and abetting liability with principal liability means that
aiding and abetting Hobbs Act robbery is, like Hobbs Act robbery itself, a
crime of violence. “Title 18 U.S.C. § 2 does not establish a separate crime
of ‘aiding and abetting,’” United States v. Pearson, 667 F.2d 12, 13 (5th Cir.
Unit B 1982); instead aiding and abetting “is simply a different way of
proving liability for the same activity criminalized elsewhere even if the aider
and abettor did not himself commit all elements of the substantive offense,”
United States v. Rabhan, 540 F.3d 344, 348 n.15 (5th Cir. 2008). “The
government ha[s] to prove each element of the crime, but thanks to 18 U.S.C.
§ 2, it [does] not have to show that [the particular defendant] committed the
acts constituting each element.” Pearson, 667 F.2d at 14. “[A] showing that
[the defendant] aided and abetted each element of the substantive offense
subjects him to punishment under section 2 as a principal in the underlying
offense.” United States v. Vasquez, 953 F.2d 176, 183 (5th Cir. 1992). In that
way, “all participants in conduct violating a federal criminal statute are
‘principals.’” Bowens, 907 F.3d at 351 (quoting Standefer v. United States,
447 U.S. 10, 20 (1980)); see also United States v. Williams, 449 F.3d 635, 647
(5th Cir. 2006) (“Under the general aiding and abetting statute, a person who
aids and abets the commission of an offense is treated the same as a principal
actor.”). Accordingly, we conclude that aiding and abetting Hobbs Act
robbery is a crime of violence under the elements clause, and Hill’s
conviction on Count Two is valid.
However, the Supreme Court has recently held that attempted Hobbs
Act robbery does not qualify as a crime of violence under the elements clause.
United States v. Taylor, 142 S. Ct. 2015, 2021 (2022). Accordingly, we must
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vacate the Defendants’ convictions on Count Four.9 Cf. United States v.
Lewis, 907 F.3d 891, 893 (5th Cir. 2018). Because the Defendants’ sentences
on the remaining counts are not “interrelated or interdependent” on Count
Four, resentencing is unnecessary. See United States v. Clark, 816 F.3d 350,
360 (5th Cir. 2016).
K. Sentencing Enhancement U.S.S.G. § 2B3.1(c)(1)
Finally, Phillips, Polk, and Scott contend that the district court erred
in applying sentencing enhancement U.S.S.G. § 2B3.1(c)(1) to their Count
Three convictions based on the killing of Batiste by police during the
attempted Amegy Bank ATM robbery. This enhancement, in pertinent part,
instructs district courts to apply § 2A1.1, the first-degree-murder Guideline,
“[i]f a victim was killed under circumstances that would constitute murder
under 18 U.S.C. § 1111[.]” Phillips renews his argument on appeal that the
district court erroneously applied this sentencing enhancement because
Batiste was not a “victim” under the meaning of the Guidelines; that is, that
a coconspirator who is killed during the commission of a crime does not
constitute a “victim” for the purpose of applying this enhancement.
Additionally, Polk and Scott, along with Phillips, raise the new theory that
this enhancement was erroneously applied because Batiste’s killing by law
enforcement was not a killing “under circumstances that would constitute
murder under 18 U.S.C. § 1111[.]”
When an issue is preserved, this court reviews the district court’s
interpretation of the Guidelines de novo and its underlying factual findings for
clear error. See, e.g., United States v. Narez-Garcia, 819 F.3d 146, 149 (5th
Cir. 2016). But when “the basis for the defendant’s objection during trial is
different from the theory [he or] she raises on appeal[,]” this court’s review
is for plain error. United States v. Sanders, 952 F.3d 263, 282 (5th Cir. 2020)
9
Because we vacate the Defendants’ convictions on Count Four, we need not
address Phillips’s argument that there was insufficient evidence to support his conviction.
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(cleaned up). In the Guidelines context, an objection in the district court to
an enhancement on one ground does not preserve for appeal alternative
arguments against that enhancement. Narez-Garcia, 819 F.3d at 149. Thus,
we review Phillips’s preserved challenge de novo and Polk and Scott’s newly
raised claim for plain error.
Polk, Scott, and Phillips raise an unpreserved challenge to the
application of sentencing enhancement U.S.S.G. § 2B3.1(c)(1), arguing that
Batiste’s killing by law enforcement was not a killing “under circumstances
that would constitute murder” under the Guidelines’ definition. They argue
that this court should impose felony-murder liability under a theory of agency
liability, rather than a proximate cause theory. U.S.S.G. § 2B3.1(c)(1).
Under agency theory, the felony murder doctrine does not allow the killing
of a coconspirator by police to be imputed to his fellow conspirator because
the police do not act as agents of the conspiracy; however, the proximate
cause theory does allow this imputation, as the commission or attempted
commission of the underlying crime is still the proximate cause of the killing
by police. See, e.g., Moore v. Wyrick, 766 F.2d 1253, 1255–56 (8th Cir. 1985)
(defining and contrasting these two theories of felony murder liability).
This new challenge cannot succeed on plain error review. As the
Government points out, the Defendants cite no binding caselaw which
adopts either the agency theory or the proximate cause theory of felony
murder in this context. Thus, any potential error is not plain. See United
States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015) (holding that a “lack of
binding authority is often dispositive in the plain-error context”); see also
United States v. McNabb, 958 F.3d 338, 341 (5th Cir. 2020) (“By definition, a
close call cannot be the obvious or plain error a defendant needs to show
when asserting an error he did not give the district court a chance to fix.”).
Whether Phillips’s challenge to the classification of Batiste as a
“victim” can prevail on de novo review is a more complicated question. As
Phillips points out, we held in United States v. Geeslin, 447 F.3d 408 (5th Cir.
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2006) that, for the purposes of a different provision of the Guidelines, §
2B1.1(b)(1), a participant in a crime whose actions were “not entirely
voluntary” could be considered a victim, calling this a “rare
circumstance[.]” Id. at 411. Phillips’s point is well taken that if it is a rare
circumstance in which a coconspirator can be considered a victim for
sentence enhancement purposes, it would seem strange to deem Batiste, the
mastermind of this robbery scheme, a victim.
Nonetheless, we need not decide this issue because the record
demonstrates that any potential error in applying the sentencing
enhancement was harmless. See, e.g., United States v. Groce, 784 F.3d 291,
296 (5th Cir. 2015) (declining to resolve a “not entirely clear” Guidelines
issue based on harmless error). “A procedural error” in applying the
Guidelines “is harmless if the error did not affect the district court’s choice
of sentence.” United States v. Halverson, 897 F.3d 645, 652 (5th Cir. 2018).
There are “at least two methods for the Government to show that the district
court would have imposed the same sentence.” United States v. Vega-Garcia,
893 F.3d 326, 327 (5th Cir.) (per curiam), cert. denied, 139 S. Ct. 441 (2018).
The first requires the Government to demonstrate “that the district court
considered both ranges (the one now found incorrect and the one now
deemed correct) and explained that it would give the same sentence either
way.” Id. (internal quotation marks omitted). The second requires “the
Government to convincingly demonstrate both (1) that the district court
would have imposed the same sentence had it not made the error, and (2)
that it would have done so for the same reasons it gave at the prior
sentencing.” Id. (internal quotation marks omitted). Whichever the
method, “[a]lthough clarity of intent must be expressed, such statements do
not require magic words.” United States v. Shepherd, 848 F.3d 425, 427 (5th
Cir. 2017).
Here, the district court made explicit that it was aware of the objection
to this sentencing enhancement and the differences in the Guidelines ranges
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for the Defendants if it did not apply the enhancement. The court stated
explicitly that it would have imposed the same sentence under the 18 U.S.C.
§ 3553(a) factors even if the murder cross-reference did not apply. Thus, the
Defendants cannot show that any potential error affected their substantial
rights. We therefore affirm the district court’s application of the sentencing
enhancement.
IV. Conclusion
For the foregoing reasons, we VACATE the Defendants’ convictions
as to Count Four. In all other respects, the judgment is AFFIRMED.
Nevertheless, we REMAND so that the district court can issue a judgment
reducing the special assessment and otherwise reflecting our decision.
42